Embedded Software End User License Terms and Conditions
BrainScope One (the “Equipment”) is a hardware device that contains BrainScope’s proprietary embedded software (the “Software”). The Software is subject to the protections of BrainScope’s U.S. and international intellectual property rights, including copyrights and numerous issued and pending patents. BrainScope retains ownership of all such intellectual property rights. The Software is licensed, not sold, and is subject to the terms and conditions of this Embedded Software End User License Terms and Conditions (the “Terms”). Subject to these Terms, BrainScope grants to the owner of the Equipment (“you,” “your”) a limited, non-exclusive license to use the Software only as installed upon the Equipment as provided by BrainScope or its authorized reseller or distributor. If you do not agree to these Terms, BrainScope is not willing to grant this license to you, and in such event you are not authorized to use the Software.
As a condition of the license granted to you, you agree that (i) you will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to recover or perceive the source code or underlying algorithms of the Software; (ii) you will not use the Software except as installed upon the Equipment; (iii) you will not modify or create derivative works of the Software; (iv) you will use the Software only for lawful purposes, and you will not export the Software or Equipment except in compliance with applicable law; (iv) you will not reproduce copies of the Software; and (v) you will not transfer or distribute Software except pursuant to a transfer or distribution of the Equipment.
The Software may be provided with BrainScope’s proprietary documentation, such as user manuals or similar materials (collectively, the “Documentation”). You may reproduce copies of such Documentation for your internal use in connection with your authorized use of the Equipment and Software, provided that you fully and accurately reproduce BrainScope’s proprietary notices (such as copyright notices and trademarks) on each such copy, and provided that you do not modify any portion of the Documentation. You may not publish, distribute, or make derivative works based upon the Documentation.
SUBJECT TO ANY SEPARATE WRITTEN AGREEMENT BETWEEN BRAINSCOPE AND YOU, BRAINSCOPE PROVIDES THE SOFTWARE “AS IS,” AND BRAINSCOPE DISCLAIMS ANY AND ALL OTHER REPRESENTATION AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, DATA ACCURACY OR SYSTEM INTEGRATION. THE EQUIPMENT AND SOFTWARE ARE DESIGNED FOR USE ONLY AS TOOLS TO ASSIST IN ASSESSMENT OF TRAUMATIC BRAIN INJURY, SUCH AS CONCUSSIONS, BUT IN NO EVENT ARE THE EQUIPMENT AND SOFTWARE INTENDED TO PROVIDE DIAGNOSES, AND YOU MAY NOT USE THE EQUIPMENT OR SOFTWARE IN LIEU OF COMPETENT MEDICAL ADVICE AND/OR DIAGNOSIS FROM A PROFESSIONAL HEALTHCARE PROVIDER. IN NO EVENT WILL BRAINSCOPE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES IN CONNECTION WITH ANY USE OF THE SOFTWARE. IN THE EVENT THAT ANY COURT OF COMPETENT JURISDICTION DETERMINES THAT ANY PROVISION OF THIS PARAGRAPH MAY NOT BE ENFORCED, BRAINSCOPE’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT THAT SUCH LIMITATION MAY BE ENFORCED UNDER APPLICABLE LAW.
These Terms, together with any license granted herein, shall terminate immediately and automatically upon your breach of any provision herein. You acknowledge that BrainScope will have the right to seek an injunction if necessary to stop or prevent a breach of your obligations under these Terms. If any provision of these Terms is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. BrainScope’s failure to require your performance of any provision in this Agreement shall not affect BrainScope’s full right to require such performance at any time thereafter; nor shall the waiver by BrainScope of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. You may not assign these Terms except pursuant to a transfer of the Equipment and the Software in their entirety, and any other attempted or purported assignment by you shall be null and void. These Terms are the complete agreement between BrainScope and you regarding the subject matter herein, and These Terms supersede any prior agreement or other communications between the parties in relation to such subject matter. These Terms will be governed by the laws of the State of Maryland, without regard to, or application of, rules or principles regarding conflicts of law. The state and federal courts located within Maryland shall have sole and exclusive jurisdiction over any disputes arising under this Agreement, and you agree to submit to the personal jurisdiction of such courts.
BrainScope® One cleared by the FDA as Ahead® 300